The Canadian case I note below reminded me of U.S. v. Cooper, an 1800 case in which Cooper was convicted under the Sedition Act of libeling then-President Adams.
On its face, the Sedition Act was (as its defenders pointed out) a considerable improvement over the English law of seditious libel; it purported to punish only false statements, and ones that were "malicious" to boot. Even today, factually false statements about particular people (even political leaders) said with knowledge of their falsehood may be punished, potentially even criminally. But in practice the Act ended up being used to punish opinions that judges disagreed with, and not just false factual allegations. Cooper offers a great example. Here's one part of Cooper's allegedly libelous statement: "Our credit was not yet reduced so low as to borrow money at eight per cent. in time of peace, while the unnecessary violence of official expressions might justly have provoked a war." Here's the relevant part of Justice Chase's instruction to the jury (at the time, judges were expected to express their opinions about the facts in the course of their instructions, though Chase seems to have gone pretty far even by the standards of the time):
The [defendant] states that, under the auspices of the president, “our credit is so low that we are obliged to borrow money at eight per cent. in time of peace.” I cannot suppress my feelings at this gross attack upon the president.... Are we now in time of peace? Is there no war? No hostilities with France? Has she not captured our vessels and plundered us of our property to the amount of millions? Has not the intercourse been prohibited with her? Have we not armed our vessels to defend ourselves, and have we not captured several of her vessels of war?
Although no formal declaration of war has been made, is it not notorious that actual hostilities have taken place? And is this, then, a time of peace? The very expense incurred, which rendered a loan necessary, was in consequence of the conduct of France. The [defendant], therefore, has published an untruth, knowing it to be an untruth.
Whether the time of the "quasi-war" with France was or was not a "time of peace" is not a question of fact; it's a question of opinion -- of how you should define "time of peace" -- and Cooper's readers would have recognized it as such. Even when libel law may properly punish factual falsehoods, it shouldn't let judges or juries proclaim some political characterization of the facts (we're in a time of peace because no war has been declared, even though there are sporadic hostilities; someone who uses lawful means for restricting speech is an enemy of free speech) to be "false."
Likewise, consider another part of Cooper's statement, "Nor were we yet saddled with the expense of a permanent navy, or threatened, under his auspices, with the existence of a standing army." Here's Justice Chase's instruction related to this point:
[T]o assert, as [defendant] has done, that we have a standing army in this country, betrays the most egregious ignorance, or the most wilful intentions to deceive the public.
We have two descriptions of armies in this country -- we have an army which is generally called the Western army, enlisted for five years only -- can this be a standing army? Who raises them? Congress. Who pays them? The people. We have also another army, called the provisional army, which is enlisted during the existence of the war with France -- neither of these can, with any propriety, be called a standing army.
In fact, we cannot have a standing army in this country, the constitution having expressly declared that no appropriation shall be made for the support of an army longer than two years. Therefore, as congress may appropriate money for the support of the army annually, and are obliged to do it only for two years, there can be no standing army in this country until the constitution is first destroyed.
There is no subject on which the people of America feel more alarm, than the establishment of a standing army. Once persuade them that the government is attempting to promote such a measure, and you destroy their confidence in the government. Therefore, to say, that under the auspices of the president, we were saddled with a standing army, was directly calculated to bring him into contempt with the people, and excite their hatred against him.... This publication is evidently intended to mislead the ignorant, and inflame their minds against the president, and to influence their votes on the next election....
Again, the alleged falsehood wasn't related to specific facts (e.g., Adams was paid such-and-such a bribe by so-and-so to authorize certain military expenditures) -- it had to do with the characterization of a certain army as a "standing army." Chase thought this political term ought to be used to mean only certain kinds of forces, just as he thought "time of peace" ought to be used to mean only certain situations; Cooper disagreed. That's a difference of opinion about how to apply political labels -- but Chase's interpretation of the Sedition Act treated the matter as involving a factual falsehood, which could be legally punished.
That's a big potential problem with libel law, a problem that American law has in recent decades has largely avoided. (There are other problems with American libel law, but I set them aside for now.) Unfortunately, Canadian law seems to be slipping into this problem, when criticisms of anti-"hate-speech" activists are involved.
Related Posts (on one page):
- Defamation Liability for Disagreements About Political Labeling:
- Calling Speech Restrictors "Enemies of Free Speech" Can Now Lead to Legal Liability in Canada: